Defense probes victim testimony in bar attack trial

March 24, 2009

A man who says he was beaten by an off-duty police sergeant and officer outside a West Loop bar testified at their trial today that he never actually saw one of them hit him.

During cross-examination Barry Gilfand, 29, of Tucson said he had his coat over his head while he was allegedly punched and kicked by Sgt. Jeffrey Planey and Officer Paul Powers following an altercation in the Jefferson Tap and Grille on Dec. 15, 2006.

"Did you see Paul Powers with your own eyes take his foot and kick you?" asked Powers attorney, Lori Lightfoot.

"No," Gilfand responded.

The testimony came in the second day of a bench trial for Powers, Planey and a third officer, Gregory Barnes, on charges of aggravated battery. Planey is also charged with official misconduct and obstruction of justice for allegedly sending away on-duty police officers who responded to 911 calls from the bar.

Prosecutors alleged that the officers were part of a group of off-duty police who attacked Gilfand, his brother, Aaron, and two friends, Scott Lowrance and Adam Mastrucci, while the four were playing pool at the bar. While authorities allege the attack was unprovoked, attorneys for the three cops say the four provoked the officers by mocking Powers, who was allegedly crying at the bar over the recent death of his father. They allege that the men -- who settled a lawsuit with the bar and have an ongoing civil lawsuit against the City of Chicago -- exaggerated their injuries in order to hit a big payday in court.

Barnes allegedly punched Aaron Gilfand in the face, breaking his nose. While much of the scuffle was captured on the bar's security video, neither Barnes nor Powers' alleged crimes were captured on tape. However, Planey can be seen grabbing Gilfand by the neck and slamming him against the wall twice.

Gilfand testified for several hours on Monday, but Tuesday was the first chance for defense attorneys to question him. In her questioning, Lightfoot brought out that Gilfand first sought medical treatment four days after the attack and was diagnosed with fractured ribs. But the diagnosis was later shown to be incorrect.

Gilfand insisted he is certain Powers assaulted him, despite his admission that he never saw Powers strike him. But he admitted he could remember virtually nothing about what he told medical staff about injuries that proved to be minor.

Lightfoot is trying to show Gainer that Gilfand has a vivid memory for details that help his civil case but no memory of things that might show he believed his injuries were minor.

In one exchange, after answering "I can't recall" to dozens of questions about what he told doctors and nurse, Gilfand spontaneously interrupted Lightfoot to correct her misstatement that one of the nurses who treated him was a woman.

"You said it's a she -- I believe it's a he," Gilfand said.

"In fact, you are correct," Lightfoot said, smiling mischievously. "It is a he."

The trial recessed for lunch and is scheduled to resume later this afternoon when the judge is expected to hear more cross-examination of Gilfand and testimony from two bar employees.